Clark v. State

• Citation: 72 So. 291,14 Ala.App. 633
• Decision Date: 15 June 1916
• Docket Number: 4 Div. 410
• Parties: CLARK v. STATE.
• Court: Alabama Court of Appeals

72 So. 291

14 Ala.App. 633

CLARK v. STATE.

4 Div. 410

Court of Appeals of Alabama

June 15, 1916

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Josiah Clark was convicted of false pretense, and he appeals. Affirmed.

Omitting formal charging part, the indictment was as follows:

Josiah Clark did falsely pretend to Ernest Hill, with the intent to defraud, that Henry Clark had instructed him, the said Josiah Clark, to procure Ernest Hill to confess judgment with the said Josiah Clark in the circuit court of Houston county, Ala., for the time and cost in the case, wherein the state of Alabama was plaintiff, and Josiah Clark defendant and by means of such false representation obtained from the said Ernest Hill the sum of $54, against the peace and dignity, etc.

The demurrers set up that the indictment charged no offense alleges a state of fact not constituting any offense known to the law; does not allege any representation by defendant of any existing or past facts which, as a matter of fact, did not exist at the time of the alleged representation.

R.P Coleman, of Dothan, for appellant.

W.L Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen., for the State.

EVANS J.

Appellant was convicted under section 6920 of the Code for having obtained money under false pretenses. The sufficiency of the indictment is challenged on several grounds, both on motion to quash and on demurrers. (The reporter will set out the indictment.) It will be observed that the indictment follows the statutory form, except that in the conclusion thereof the word "representation" is substituted for the word pretense, thus reading, "and by means of such false representation obtained from the said Ernest H. Hill the sum of $54," etc. The allegation of the false pretense relied on is also called into question. In the absence of a bill of exceptions, we cannot review a motion to quash the indictment. Weyms v. State, 69 So. 310. The refusal of the trial court, however, to quash an indictment is not ordinarily revisable on appeal, being a matter addressed to the sound discretion of the court. Bryant v. State, 79 Ala. 282; Johnson v. State, 134 Ala. 54, 32 So. 724; Mosely v. State, 1 Ala.App. 108, 56 So. 35. The overruling of the motion to quash is a matter of no consequence, however, as defendant had advantage of the same questions on demurrers.

The substitution of the word "representation" for "pretense" preserved substantially the same sense and meaning and was immaterial.

"Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning." Code 1907, § 7136.

The substitution was a distinction without a substantial difference; it was a substantial conformity, which is sufficient. Block v. State, 66 Ala. 493; Richmond v. State, 4 Ala.App. 139, 58 So. 973.

Under the authorities, we think the indictment in this case sufficient. The representation made by defendant to Ernest H. Hill purported to be of a past or existing fact or condition, and the instructions or request of Henry Clark to Ernest H. Hill as represented by defendant may or may not have been cogent and controlling in inducing Hill to act in the premises. That was a matter dependent largely upon the relations of the parties. However, these were jury questions and were determined adversely to appellant. Meek v. State, 117 Ala. 116, 23 So. 155; Wilkerson v. State, 140 Ala. 155, 36 So. 1004; Beasley v. State, 59 Ala. 20.

The indictment is sufficient if the pretense is not patently absurd or irrational, or if the defrauded party had not at the very time it was made and acted on the means at hand of detecting its falsehood, and his want of prudence is no defense. Woodbury v. State, 69 Ala. 242, 44 Am.Rep. 515; Meek v. State, supra.

There is nothing in the contention that defendant did not obtain the money from Ernest H. Hill, but merely a suretyship. The money was parted with by reason of and in consequence of the false pretense, and it having been paid over to some one other than the prisoner, but in payment of prisoner's obligation and at his request, is sufficient (Sandy v State, 60 Ala. 58); nor is it necessary that the money should be parted...